HomeMy WebLinkAboutSSF, INC. DBA VOLVO OF ORANGE COUNTY - 2015A -2015 -231
SALES TAX REBATE AGREEMENT
This SALES TAX REBATE AGREEMENT ( "Agreement ") is made and entered into this
b 20`h day of October, 2015, by and between SSF, INC., doing business as VOLVO OF ORANGE
COUNTY, a California corporation ( "Volvo'), and the CITY OF SANTA ANA, a charter city and
municipal corporation organized and existing under the Constitution and laws of the State of
California ( "City ").
RECITALS
A. Sales tax rebate assistance is an economic development tool used to encourage
the development or expansion of new businesses that create additional sales tax for a City. The
purpose of this Agreement is to help offset some of the building costs and to increase sales by
increasing vehicle allocation from Volvo Cars North America as a result of Volvo of Orange
County meeting the new facility requirements and not as dividends to stock holders.
B. The City was recently approached by Volvo, one of the Santa Ana Auto Mall
dealerships, to consider a sales tax rebate assistance agreement to help fund their facility
upgrade. The Volvo Group Global, the corporate office of Volvo of Orange County, has
requested dealerships complete a remodel, both interior and exterior, of their facilities to
reposition themselves within the automotive market. Enhancements to the Auto Mall should be
supported by the City to keep it competitive and state of the art.
C. The remodel of the facility is estimated to cost $2.5 million dollars and will take
approximately six months to complete. With the agreement to remodel, Volvo will receive an
increase in the allocation of newly designed and highly desired new vehicles for their location.
It was indicated that if the facility upgrade did not occur, Volvo would be at a competitive
disadvantage as compared to other Volvo dealerships in the region.
D. Currently, Volvo is one of the top 50 sales tax generators for the City, while other
dealers in the Auto Mall are in the top 10. Since 2011, Volvo saw a nine percent decrease in
sales, while other dealers saw increases in their sales. Improvements to their facility will only
enhance their prosperity for the future.
E. The proposed agreement for consideration is to reimburse 50 percent of the new
sales tax generated above the base year (July 1, 2015 — June 30, 2016) up to $1 million dollars,
or 10 years, whichever comes first. For the remodel, the Volvo Group Global has committed to
pay $500,000, while Volvo of Orange County will pay $1 million dollars for their facility upgrade.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
DEFINED TERMS.
The following terms when used in this Agreement shall have the meanings set forth
below:
"Base Year" shall mean July 1, 2015, through June 30, 2016.
"City Consideration" shall mean the amounts to be paid by City to Volvo for Volvo's
conduct of the Required Operations during the Operating Period. The City Consideration for the
Operating Period is to reimburse Volvo each Contract Year fifty percent (50 %) of the new sales
tax generated in the City from the Required Operations above the base year, up to one - million
dollars ($1,000,000.00), or ten (10) years, whichever comes first.
"Commencement Date" shall mean the date on which Volvo completes its facility
remodel and upgrade, as set forth in a written notice from Volvo to the City. The parties
anticipate that such work will take approximately six (6) months to complete.
"Contract Year" shall mean the period from July 1 to June 30 during each year of the
Operating Period. For the purposes of this Agreement, the first Contract Year ends on June 30,
2017.
"Covered Parties" shall mean the City and its elected and appointed boards, members,
officials, officers, agents, representatives, employees and volunteers.
"Effective Date" shall mean the date first written on page 1 of this Agreement.
"Operating Period" shall mean the period commencing as of the Commencement Date,
and continuing until and expiring after ten (10) years; provided, however, that Volvo may
terminate this Agreement for any reason, or no reason, at any time upon one hundred and
eighty (180) days' written notice to the City.
"Required Operations" shall collectively refer to the following on and with respect to
Volvo conducting its automotive retail sales and service operations in the City: (1) Volvo retaining
and continuing to own or lease sufficient facilities in the City to allow the automotive retail sales
and service operations to be conducted; (ii) Volvo's operation of the automotive retail sales and
service operations within the corporate boundaries of the City; and (iii) Volvo not transferring or
otherwise relocating the automotive retail sales or service operations as reported to the State
Board of Equalization to another facility or location outside of the City.
"Sales Tax(es)" means that portion of taxes that is allocated, paid to, and actually
received by City from the imposition of the Bradley -Burns Uniform Sales and Use Tax law
(commencing with Section 7200 of the California Revenue and Taxation Code), or any
successor law thereto, arising from all taxable sales transactions, occurring from Required
Operations conducted by Volvo within the City during the Operating Period. "Sales Tax" shall
not include sales tax revenues that are provided to a city based upon a special election and are
limited to be used for a specified governmental function or functions.
"Sales Tax Reports" shall include, for each Contract Year: (i) a statement identifying the
amount of Sales Tax paid by Volvo from Required Operations within the City during the Contract
Year; and, (ii) copies of all statements and reports filed with the State Board of Equalization.
"Termination Date" shall occur upon the payment of one - million dollars ($1,000,000.00)
in City Consideration from City to Volvo, or ten (10) years after the Commencement Date,
whichever comes first, subject to extension or earlier termination of the Operating Period as set
forth in this Agreement.
VOLVO OBLIGATIONS.
2.1 Operating Agreement; Continuous Operation. Volvo hereby covenants and
agrees to continuously conduct or cause to be conducted Required Operations within the City
during the entire Operating Period. Such continuous operations shall be subject to the force
majeure provisions of Section 5.11 hereof.
2.2 Maximization of Sales Tax. At all times during the Operating Period, Volvo shall
designate its dealership and sales office in the City as the point of sale for sales and use tax
purposes in all automotive retail sales and service operations that originate from within the City.
2.3 Payment of Taxes. Volvo shall pay or cause to be paid any and all taxes
applicable to or arising out of Volvo's lease, operation and /or use of its dealership and sales
office in the City, including, without limitation, all taxes attributable to sales occurring at such
office, except that Volvo retains its right to protest and contest County of Orange decisions
related to the value of its interest in any property or leasehold. Volvo shall make or cause to be
made timely sales and use tax payments to the State Board of Equalization, except that Volvo
retains its right to protest and contest State Board of Equalization assessments or decisions that
Volvo believes to be erroneous.
2.4 Compliance with Laws. Subject to Volvo's right to contest same, Volvo shall
conduct or cause to be conducted all activities within the City and shall perform its obligations
under this Agreement in conformity with all applicable federal, state, and local laws, ordinances,
and regulations. Nothing in this Agreement is a representation or warranty by City that any
tenant improvement or other construction work performed by Volvo within the City on or after
the date of this Agreement is not a public work as defined in Labor Code Sections 1720, et seq.,
including but not limited to Sections 1771 and 1781.
3. CITY CONSIDERATION PAYMENTS.
3.1 Payment of City Consideration to Volvo.
3.1.1 Calculation of City Consideration. In consideration for Volvo's
undertakings pursuant to this Agreement, City shall make payments of City Consideration to
Volvo after the end of each Contract Year, as follows:
3.1.1.1 Subject to Paragraph 3.1.1.2 below, for Required
Operations conducted by Volvo in the Operating Period, City shall pay Volvo the City
Consideration based on the actual net amount of Sales Tax directly received by the City from
the State Board of Equalization during that Contract Year. Subject to the terms of Section 3.1.2,
the payment of City Consideration for each Contract Year shall be made in a single lump sum
payment within one hundred and twenty (120) days following the end of that Contract Year.
3.1.1.2 City Consideration shall be payable from any source of
funds legally available to City. In this regard, it is understood and agreed that the Sales Tax
from Volvo's Required Operations in the City is being used merely as a measure of the amount
of City Consideration payments that are periodically owed by City to Volvo, and that City does
not and legally cannot pledge any portion of that Sales Tax to Volvo.
3.1.2 Payment Procedure.
3.1.2.1 After the end of each Contract Year, and no later than one
hundred and twenty (120) days after Volvo's payment of the Sales Tax to the State Board of
Equalization for that Contract Year, Volvo shall submit to City the Sales Tax Reports for the
preceding Contract Year and a written request for payment of the City Consideration owing to
Volvo. Any delay shall not constitute either a breach of this Agreement or a waiver of Volvo's
right to receive the City Consideration under this Agreement, but may result in a delay in the
City's payment of City Consideration to the extent that such delay by Volvo causes the City to
be unable to meet its payment obligations in a timely manner.
3.1.2.2 Payment of the amount determined by City to be owing to
Volvo for each Contract Year shall be made by City within one hundred and twenty (120) days
after the later of the following: (i) Volvo's submission of its completed payment request; and (ii)
City's verification, based upon corroborating information provided to City by either the State
Board of Equalization and /or a sales tax consultant retained by City, that City has received the
Sales Tax attributable to sales from all Required Operations within the City for the applicable
Contract Year. Any disapproval by City of a Volvo payment request shall state in writing the
reasons for disapproval and shall be provided to Volvo within fifteen (15) days after City has
received information necessary to make the determination that the payment request cannot be
approved. City agrees to expeditiously process Volvo's requests for payment of City
Consideration. Volvo expressly understands that nothing contained in this Agreement shall
obligate or otherwise commit City to pay the City Consideration for a Contract Year unless and
until City receives reasonably satisfactory verification that City has received the Sales Tax
attributable to sales from the Required Operations in the City for that Contract Year.
3.1.2.3 In the event that the State Board of Equalization conducts
a review or audit of Volvo's Required Operations or Sales Tax payments during the Operating
Period that results in an actual and final loss or reduction of monies that City has already paid to
Volvo as City Consideration for one or more Contract Years, or in the event that Volvo amends
any sales tax returns that causes a reduction in the Sales Tax due to the City for one or more
Contract Years, Volvo shall, within thirty (30) days of its receipt of written notice by the City,
return that portion of the City Consideration attributable to the monies that were lost or reduced.
In the event that the State Board of Equalization conducts a review or audit of Volvo's Required
Operations or Sales Tax payments during the Operating Period that results in an increase of
Sales Tax that Volvo must pay for one or more Contract Years, or in the event that Volvo
amends any sales tax returns that causes an increase in the Sales Tax due for one of more
Contract Years, Volvo shall inform the City and the City shall commensurately increase the City
Consideration paid by Volvo. The provisions of this paragraph shall survive the termination of
this Agreement.
3.1.2.4 The parties acknowledge that certain payments of Sales
Tax received by City may be based on estimates and that such amounts will be periodically
reduced or increased by the State Board of Equalization to reflect the actual amount of Sales
Tax owed to City. The City Consideration payments shall be adjusted accordingly as necessary
to conform to such reconciliations. The adjustment shall be made within sixty (60) days through
a payment by Volvo to City in the case of an overpayment to Volvo, or a payment by City to
Volvo in the case of an underpayment to Volvo. Within thirty (30) days of a written request by
Volvo, the City shall provide Volvo with documentation to substantiate the adjustment of the City
Consideration payment(s).
E!
3.1.2.5 Within ninety (90) days following the end of each Contract
Year, the City may conduct an accounting of all of Volvo's Sales Tax Reports and Sales Tax
payments during the immediately preceding Contract Year, and the amount of the City
Consideration payments made to Volvo during that immediately preceding calendar year.
However, the City may also conduct such an accounting at any time by giving thirty (30) days
written notice in the event that facts or circumstances arise, such as change in operations,
change of ownership or business entity status, which can impact the method or amount of
Volvo's Sales Tax Reporting or Payments. The City shall provide Volvo a copy of that
accounting and reconciliation upon its completion. In the event that the accounting and
reconciliation identifies a disparity between the Required Operations, Volvo's Sales Tax
payments, or City Consideration during that immediately preceding calendar year, appropriate
adjustments shall be made within sixty (60) days by a payment from Volvo to City in the case of
an overpayment to Volvo, or a payment from City to Volvo in the case of an underpayment to
Volvo.
3.1.3 No Acceleration. It is acknowledged by the parties that any payments by
City provided for in this Agreement may only be paid for those periods in which City receives the
performance of Volvo pursuant to this Agreement. Therefore, the failure of City to make any
payments or the failure by City to perform any of its other obligations hereunder shall not cause
the acceleration of any anticipated future City Consideration payments by City to Volvo.
3.2 Conditions Precedent to City's Obligations. City's obligation to perform
hereunder, including without limitation its obligation to pay the City Consideration pursuant to
Section 3.1 of this Agreement, shall be contingent and conditional upon Volvo's full and
satisfactory performance of its obligations set forth in this Agreement. Notwithstanding the
foregoing, any delay by Volvo in sending reports or other information to the City, or the
existence of inadvertent errors in reports or information sent by Volvo to the City, shall not
constitute either a breach of this Agreement or a waiver of Volvo's right to receive the City
Consideration payable under this Agreement. However, such delay or error by Volvo may result
in a delay in the City's payment of City Consideration to Volvo to the extent that such delay or
error by Volvo causes the City to be unable to meet its payment obligations on a timely basis.
3.3 Disclosure of Payments. Volvo agrees that the City Consideration payments and
the amounts thereof do not constitute a violation of Revenue and Taxation Code Section 7056
or any other provision of law pertaining to the disclosure of sales tax information, shall be a
matter of public record, may be disclosed to any person, and may be included on the City's
warrant register. Volvo waives any law that is contrary to any of the agreements in this Section
3.3.
3.4 City Facilitation of Site Improvements. The City shall take commercially
reasonable steps to expedite the review and processing of building permits, certificates of
occupancy and final instruction, and other permits, approvals and entitlements needed by Volvo
in connection with the remodel of its facility.
4. TERMINATION RIGHTS.
4.1 City Termination Rights. Subject to the force majeure provisions of Section 5.11
below, City shall have the right to terminate this Agreement if, following the Commencement
Date, Required Operations are not conducted within the City for a period of ninety (90)
consecutive days.
5
4.2 Volvo Termination Rights. Volvo may terminate this Agreement for any reason,
or no reason, upon one hundred and eighty (180) days written notice to the City.
4.3 Mutual Termination Rights. City makes no representation or warranty to Volvo
as to the legality of the City Consideration payments or the City's authority to make such
payments. In the event that a final, non - appealable judgment or decree is rendered against City
invalidating its payment obligations set forth in this Agreement, either City or Volvo may
terminate this Agreement by delivery of written notice of termination to the other party.
GENERAL PROVISIONS.
5.1 Entire Agreement, and Amendments. This Agreement incorporates all of the
terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations
and previous agreements between the parties with respect to the subject matter hereof. Any
amendment or modification to this Agreement must be in writing and executed by Volvo and
City.
5.2 Limitations on City's Liability. Volvo acknowledges and agrees that:
5.2.1 The relationship between Volvo and City pursuant to this
Agreement is and shall remain solely that of contracting parties, and City neither undertakes nor
assumes any responsibility pursuant to this Agreement to review, inspect, supervise, approve,
or inform Volvo of any matter in connection with this Agreement or the Required Operations;
5.2.2 City shall not be directly or indirectly liable or responsible for any
loss or injury of any kind to any person or property, except to the extent proximately caused by
City's active negligence or intentional misconduct, resulting or in any way arising from: (a) any
defect in any building, grading, landscaping, or other onsite or offsite improvement; (b) any act
or omission of Volvo or any of Volvo's agents, employees, independent contractors, licensees,
sub lessees or invitees; or (c) any accident at the Volvo facility, or any fire or other casualty or
hazard thereon; and
5.2.3 By accepting or approving anything required to be performed or
given to City under this Agreement, City shall not be deemed to have warranted or represented
the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a
warranty or representation by City to anyone.
5.3 Interpretation; Governing Law; Venue. This Agreement shall be construed
according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be
construed in accordance with the laws of the State of California, without regard to conflict of law
principles. All legal actions must be instituted and maintained in the Superior Court of the
County of Orange, State of California, or in any other appropriate court in that County.
5.4 Severability. If any term, provision, Agreement, or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of
this Agreement shall not be affected thereby to the extent such remaining provisions are not
rendered impractical to perform taking into consideration the purposes of this Agreement.
5.5 Binding Effect; Successors and Assigns. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors and assigns.
5.6 Notices. All notices and other communication required under this Agreement
shall be in writing and shall be delivered by either: (i) personal delivery, (ii) reliable courier
service that provides a receipt showing date and time of delivery, (iii) registered or certified U.S.
Mail, postage prepaid, return receipt requested, or (iv) facsimile. Notices shall be addressed to
the respective parties as set forth below or to such other address and to such other persons as
the parties may hereafter designate by written notice to the other party hereto:
To City: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: City Manager
Facsimile: (714) 647 -6954
To Volvo: SSF, Inc., dba Volvo of Orange County
1400 South Dan Gurney Drive
Santa Ana, CA 92705
Attention: James Speck, President
Facsimile: (714) 480 -9533
Each notice shall be deemed delivered on the date delivered if by personal delivery or by
overnight courier service, on the date of receipt as disclosed on the return receipt if by mail, or
on the date of transmission with confirmed successful transmission and receipt if by facsimile.
By giving to the other party written notice as provided above, the parties to this Agreement shall
have the right from time to time, and at any time during the term of this Agreement, to change
their respective addresses or contact persons.
5.7 Representations and Warranties. As a material inducement to City's entry into
this Agreement, Volvo represents and warrants to City that (i) Volvo has the full power and
authority to enter into and perform under this Agreement; and (ii) all authorizations and
approvals required to make this Agreement binding upon Volvo have been duly obtained. As a
material inducement to Volvo's entry into this Agreement, City represents and warrants to Volvo
that, subject to and limited by the provisions of Section 5.2: (i) City has the full power and
authority to enter into and perform under this Agreement; and, (ii) all authorizations and
approvals required to make this Agreement binding upon City have been duly obtained.
5.8 Litigation Expenses. If either of the parties institutes any legal action against the
other in connection with any controversy related to, concerning or arising out of this Agreement,
or any facts based upon or involving this Agreement, then the prevailing party, whether in court,
through mediation, arbitration or by way of out -of -court settlement, shall be entitled to recover
from the non - prevailing party such prevailing party's reasonable attorneys' fees, court costs,
expert witness fees and other expenses relating to such controversy, including such fees, costs
and expenses on appeal, if any; and the arbitrator(s), if any, is hereby authorized to make such
an award to the prevailing party in arbitration.
5.9 Termination. In the event this Agreement terminates, no termination shall
release any party in default and this Agreement shall survive for purposes of allowing a party to
enforce its rights and remedies under this Agreement in the event of a default, including without
limitation the provisions of Section 4.3. All indemnification provisions and any other provision
that by its nature cannot be performed during the term of this Agreement shall survive the
termination of this Agreement.
5.10 Defense of Third Party Claims. To the fullest extent permitted by law, Volvo shall
indemnify, defend and hold harmless the City, its officers, agents, and employees from and
against any and all losses, liabilities, damages, costs and expenses, including attorney's fees
and costs in the event that a third party files litigation challenging the validity or enforceability of
this Agreement, or any payment of the City Consideration by the City to Volvo. The City and
Volvo may jointly defend the Agreement and /or City Consideration payment. If the litigation is
filed only against the City, Volvo may move to intervene as a defendant, respondent or real
party in interest, based upon the nature and form of the litigation.
5.11 Force Maieure. The obligations by either party hereunder shall not be deemed in
default and times for performance hereunder shall be extended where delays are caused by
fire /casualty losses; strikes, riots or war; litigation; unusually severe weather; inability to secure
necessary labor, materials or tools because of a shortage in the market; delays of any
contractor, subcontractor or supplier; unjustified acts or failure to act by City in the processing or
approval of plans or permits or inspection or approvals of improvements for Volvo's facility
remodel; acts of God, or other similar causes without the fault and beyond the reasonable
control of the party, despite the party's diligent efforts (collectively, "force majeure "), if written
notice is provided to the other party within a reasonable period following commencement of any
such circumstances and, provided further, that the extension of time shall be only for the period
of the force majeure delay. Adverse market conditions or the inability to obtain financing shall
not constitute an event of force majeure.
5.12 Counterparts. This Agreement may be executed in two or more counterparts,
each of which when so executed and delivered shall be deemed an original and all of which,
when taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
C. MA't't4 rye 8�r
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
SONIA
City q
RECOMMENDED FOR APPROVAL:
]AV/
Kelly Reenders
Executive Dire tr — CDA
CITY OF SANTA ANA
City Manager
SSF, Inc., dba VOLVO OF ORANGE
COUNTY
James S eck
President
Tax ID# 33 -07777